Cvitanovich-Dubie v. Dubie

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
28928
22-JUN-2011
02:10 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I

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GERALDINE CVITANOVICH-DUBIE, now known as GERALDINE
CVITANOVICH, Petitioner/Plaintiff-Appellant

vs.

NANCY DUBIE, Personal Representative of the Estate of
George Patrick Dubie, Respondent/Defendant-Appellee

NO. 28928

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(FC-D NO. 03-1-3588)

JUNE 22, 2011

RECKTENWALD, C.J., NAKAYAMA AND DUFFY, JJ., AND CIRCUIT JUDGE
PERKINS, ASSIGNED IN PLACE OF MOON, C.J., RECUSED AND RETIRED;
WITH ACOBA, J., CONCURRING SEPARATELY AND DISSENTING

OPINION OF THE COURT BY RECKTENWALD, C.J.

In the instant appeal, we consider whether the family

court properly denied Geraldine Cvitanovich-Dubie’s (Geraldine)

motion for relief from the divorce decree terminating her

marriage to George Patrick Dubie (George). The motion alleged

that Geraldine and George were never legally married, and that
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the property settlement agreements attendant to the divorce

decree were procured through fraud on the court and undue

influence.

Briefly stated, the family court granted Geraldine and

George’s divorce in a November 28, 2003 Divorce Decree (11/28/03

Decree). George was subsequently shot and killed in Thailand on

July 2, 2006. On June 28, 2007, Geraldine filed a motion to

vacate the 11/28/03 Decree, or to set aside the corresponding

property division, pursuant to Hawai#i Family Court Rules (HFCR)

Rule 60(b)(4) and (6), quoted infra. Geraldine argued, inter

alia, that her marriage to George was void ab initio because

George’s previous marriage had not ended in a valid divorce.

Accordingly, Geraldine argued that she and George were not

legally married at the time the family court entered the 11/28/03

Decree, and that the 11/28/03 Decree was therefore void for lack

of subject matter jurisdiction.

The Family Court of the First Circuit (family court)

denied Geraldine’s motion,1 and Geraldine appealed. In an

April 12, 2010 published opinion, the Intermediate Court of

Appeals (ICA) held that quasi-estoppel barred Geraldine’s

challenge to the validity of the 11/28/03 Decree. Cvitanovich-

Dubie v. Dubie, 123 Hawai#i 266, 278-80, 231 P.3d 983, 995-97

(App. 2010). The ICA further held that Geraldine’s claims of

fraud and undue influence were properly considered under HFCR

1
The Honorable R. Mark Browning presided.

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Rule 60(b)(3), quoted infra, and were untimely because they were

not brought within one year of the 11/28/03 Decree. Id. at 281-

82, 231 P.3d at 998-99. Geraldine seeks review of the ICA’s

May 3, 2010 judgment, affirming the family court’s order denying

Geraldine’s motion.

We conclude that the ICA did not err in affirming the

family court’s order, but that its reasoning was erroneous in

part. Specifically, the ICA held that Geraldine was estopped

from challenging the validity of George’s prior divorce, and

thereby was estopped from challenging the family court’s subject

matter jurisdiction to enter the 11/28/03 Decree. Id. at 278-80,

231 P.3d at 995-97. However, jurisdiction cannot be created by

estoppel, cf. Williams v. Aona, 121 Hawai#i 1, 8, 210 P.3d 501,

508 (2009) (“The lack of jurisdiction over the subject matter

cannot be waived by the parties.”) (citation omitted), and it

therefore follows that a party cannot be estopped from

challenging the family court’s subject matter jurisdiction.

Accordingly, the ICA was required to address whether the 11/28/03

Decree was “void,” as that term is used in HFCR Rule 60(b)(4),

for lack of subject matter jurisdiction.

For the reasons set forth below, we hold that the

11/28/03 Decree is not void under HFCR Rule 60(b)(4). We further

hold that Geraldine’s claims of “fraud on the court” and undue

influence are properly considered under HFCR Rule 60(b)(3), and

are therefore untimely. Accordingly, we affirm the judgment of

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the ICA.

I. Background

The following factual background is taken from the

record on appeal.

A. 11/28/03 Decree

Geraldine and George’s certificate of marriage

indicates that they were married on May 1, 1996. Geraldine filed

a Complaint for Divorce on November 6, 2003, on the ground that

the marriage between Geraldine and George was irretrievably

broken.

Following a hearing, the family court filed the

11/28/03 Decree, in which it found “the material allegations of

the Complaint for Divorce to be true, [Geraldine] is entitled to

a divorce from the bonds of matrimony . . . and the [family

c]ourt has jurisdiction to enter this Divorce Decree.” The

11/28/03 Decree incorporated by reference “the Marital Agreement,

signed on October 20, 2003, [the] First Amendment to Marital

Agreement, signed on November 3, 2003, [the] Second Amendment to

Marital Agreement, signed on November 7, 2003, and [the] Third

Amendment to Marital Agreement, signed on November 7, 2003”

(hereinafter collectively “Property Settlement Agreements”). The

11/28/03 Decree ordered that “[t]he parties are awarded all of

their separate property,” and that “[a]ll joint property shall be

divided equally,” except as set forth in the Property Settlement

Agreements.

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B. Rule 60 motion

1. Geraldine’s allegations and arguments

On June 28, 2007, Geraldine filed a motion to vacate

the 11/28/03 Decree, or to set aside the corresponding property

division, pursuant HFCR Rule 60(b)2 (Rule 60 motion).3

2
Unless otherwise indicated, all references herein to Rule 60(b)
refer to the HFCR. HFCR Rule 60(b) provides for relief from a judgment or
order as follows:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud. On motion and upon such
terms as are just, the court may relieve a party or a
party’s legal representative from any or all of the
provisions of a final judgment, order, or proceeding
for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule
59(b); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party; (4) the judgment is
void; (5) the judgment has been satisfied, released,
or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is
no longer equitable that the judgment should have
prospective application; or (6) any other reason
justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and
for reasons (1), (2), and (3) not more than one year
after the judgment, order, or proceedings was entered
or taken. For reasons (1) and (3) the averments in the
motion shall be made in compliance with Rule 9(b) of
these rules. A motion under this subdivision (b) does
not affect the finality of a judgment or suspend its
operation. This rule does not limit the power of a
court to entertain an independent action to relieve a
party from a judgment, order, or proceeding, or to set
aside a judgment for fraud upon the court.

(Emphasis added).

3
Geraldine had previously filed a Motion for Substitution of
Parties to Pursue Post Decree Relief, seeking to substitute Nancy Dubie
(Nancy), as Personal Representative of George’s estate, as a defendant. It
appears that the family court orally granted the substitution during an
October 8, 2007 hearing on Geraldine’s motions, inasmuch as the family court
stated that it was “inclined to grant the motion for substitution[,]” and did
not comment further on that motion. Although no written order was entered on
Geraldine’s motion for substitution, all subsequent filings listed Nancy as
the defendant, and neither party has disputed that the motion for substitution
was granted.

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Geraldine’s Rule 60 motion sought relief pursuant to Rule

60(b)(4) and Rule 60(b)(6). With regard to Rule 60(b)(4),

Geraldine argued that the 11/28/03 Decree was void on the ground

that Geraldine and George were never legally married.

Alternatively, Geraldine argued that the property division

portion of the 11/28/03 Decree should be set aside under Rule

60(b)(6), on the ground that the property division was the result

of “fraud on the court” and “undue influence.”

In her Memorandum in Support of Motion, Geraldine

alleged the following facts in support of her claims. Geraldine

asserted that George was legally married to Sylvie Bertin

(Sylvie) in Honolulu, Hawai#i on October 2, 1989. Geraldine

asserted that Sylvie “purported to obtain a divorce decree in

Santo Domingo, Dominican Republic” on February 2, 1995 (Dominican

Decree).4 Geraldine asserted that Sylvie was then a resident of

Montserrat, West Indies, and that George “was not and never had

been a resident and/or domiciliary of the Dominican Republic, and

did not appear personally or through counsel in any divorce

proceedings in the Dominican Republic.”

Geraldine further asserted that she met George in March

1996, and that George “intended to obtain her money and

property.” Geraldine asserted that George therefore made factual

4
The parties variously refer to the date of the Dominican Decree as
February 2, 1995 or February 7, 1995. It appears that the judgment of the
Dominican court was entered on February 2, 1995, and that a Notice of Judgment
was issued on February 7, 1995. For purposes of this opinion, we consider the
date of the Dominican Decree to be the date of the Dominican court’s judgment,
or February 2, 1995.

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representations to her, including that (1) he was independently

wealthy; (2) he had authored numerous screen plays for well-known

movies; (3) he had serious and/or fatal illnesses and diseases;

and (4) his uses of her money were to her benefit. Geraldine

further asserted that George concealed from her “that he had a

criminal conviction, that there were unsatisfied civil judgments

against him for more than a million dollars for fraud and undue

influence, and that he had fathered at least nine children.”

Geraldine further asserted that, in 2002, George “began

spending a considerable amount of time in Thailand,” where he

obtained “items of value and real property” using Geraldine’s

money. Geraldine asserted that, in 2003, George advised her that

“for business and other reasons” they should divorce, but that

the divorce would be temporary and they should not tell anyone of

the divorce.

In support of these factual assertions, Geraldine

submitted (1) a copy of George and Sylvie’s marriage certificate;

(2) certified copies of two separate Judgments, Guilty

Convictions and Probation Sentences, sentencing “George Dubie” on

charges of theft in the first degree, to which he pled no

contest; (3) a copy of a civil judgment against George in the

amount of $1,705,594.44 in an unrelated civil case; (4) certified

copies of Geraldine and George’s marriage license application and

marriage certificate, indicating that Geraldine and George were

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married on May 1, 1996;5 (5) a Variation of Separation Agreement

entered into by Sylvie and George in 1996;6 (6) a Report of the

Death of an American Citizen Abroad concerning George’s death;

(7) an Order Granting Petition for Probate of Will and

Appointment of Personal Representative in P. No. 06-1-0700,

naming Nancy as Personal Representative of George’s estate; (8)

Geraldine’s declaration; (9) a declaration, “legal opinion,” and

supporting materials from an attorney in the Dominican Republic,

concerning the validity of the Dominican Decree; and (10) a

declaration of forensic psychologist Bennett Blum, opining that

the Property Settlement Agreements were a result of George’s

undue influence on Geraldine.

In her declaration, Geraldine stated, in pertinent

part, as follows:
3. In or about March 1996, I met GEORGE [].
From the beginning of our relationship, GEORGE [] made
factual representations to me regarding his financial
worth, his business activities, his children and his
marital status. These included, without limitation,
representations that he was independently wealthy,
that he was the author of numerous screen plays of
well-known Hollywood movies, that he had four
children, and that he was divorced from his previous
wife Sylvie []. GEORGE [] concealed the facts that he
had a criminal conviction, that there were civil
judgments against him, and that he had fathered at
least nine children.
4. On or about April 30, 1996, a purported
investigator named G. Kalani Long gave me a letter in

5
In the Marriage License Application from the Hawai#i State
Department of Health, George indicated that his most recent marriage had ended
in divorce in September 1995 in the “Dominican Rep., Carribean [sic].”

6
The Variation of Separation Agreement, which was filed in the
Supreme Court of British Columbia on October 23, 1996, amended a prior June 9,
1995 Separation Agreement and altered Sylvie and George’s agreement with
regard to custody of their daughter. In the Variation of Separation
Agreement, Sylvie is denominated as “the Wife,” and George is denominated as
“the Husband.”

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which he advised me that he had conducted a background
check on GEORGE [] on March 27, 1996; that he had
checked publicly available records in the State of
Hawaii with regard to whether GEORGE [] had a criminal
record and whether there had been civil judgments
entered against him and that the results of the
investigation were that GEORGE [] had no criminal
record and that there were no civil judgments against
him.
5. GEORGE [] and I went through a marriage
ceremony on May 1, 1996. From and after that date, I
thought and believed that GEORGE [] and I had been
legally married on May 1, 1996.
6. I relied on the factual representations as
set forth above. Had I known the truth, I would not
have consented to marry GEORGE [].
7. Shortly after my marriage to GEORGE [], he
introduced me to Sylvie [].
8. Beginning around 2002, GEORGE [] began
spending a considerable amount of time in Thailand,
where, on information and belief, he invested in,
purchased, or otherwise obtained items of value and
real property, using money obtained from me. He
represented to me that each item he purchased or
invested in belonged equally to both of us and that
all uses of and investments of my money created an
ownership interest in my favor and therefore that they
were of benefit to myself and/or would be returned to
me.
9. In 2003, he represented to me that for
business and other reasons, we should obtain a
divorce, but that the divorce would be only temporary,
that we would soon remarry, and that therefore, we
shouldn’t tell others of the divorce and should
continue to live as we had throughout our marriage. I
believed him and agreed to do so. GEORGE [] caused me
to agree to transfer real property, personal property
and other things of value to him via contracts, some
of which became incorporated in what purported to be a
decree of divorce issued by the [family court] and
some of which were post-divorce decree transfers.
10. Not until months after GEORGE []’s death
did I become aware that GEORGE [] had not been validly
divorced from Sylvie [] at the time of the May 1, 1996
ceremony.
11. It was only after GEORGE []’s death in July
of 2006 that I became aware how he had manipulated me
through false statements, false promises, and other
devices and techniques to transfer property (real and
personal) and things of value to him in the course of
our divorce proceedings. But for his manipulations of
me, false statements, false promises and other tactics
employed by him, and my trust in him, I would not have
agreed to these transfers.
. . . .

In his declaration, forensic psychologist Bennett Blum

declared in pertinent part as follows:

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a. It is my opinion that [Geraldine] was
susceptible to manipulation and undue influence at the
time she met [George] in 1996 due to certain factors
in her background and certain life circumstances
existing at that time.
b. It is my opinion that [Geraldine] expected
honesty and truthfulness from [George]; however, he
engaged in manipulative, deceptive and misleading
behaviors in order to benefit himself. Such behaviors
included the willful presentation of false information
(“lying”); and withholding relevant information,
presenting partial truths, and/or taking statements
out of context (“paltering”). Through his lying and
paltering, [George] used several manipulative tactics
and created situations commonly employed by cult
leaders, scam artists, and perpetrators of undue
influence.
c. Because of [George’s] lies and palters,
[Geraldine] based decisions about him and his requests
upon misleading, inadequate, and/or inaccurate
information.
d. . . . . [Geraldine] was made to believe that
certain actions were critical to her husband’s health
and their happiness as a couple. This consideration
overwhelmed all others, including the input from legal
advisors or accountants.
e. It is my opinion that [Geraldine] was
subjected to the psychological and interpersonal
conditions associated with undue influence.
f. It is my opinion, to a reasonable degree of
medical probability, that all of [Geraldine’s] major
transactions involving [George], including property
transfers, occurred as a result of his manipulation
and use of undue influence tactics. This includes the
period from their wedding until his death.

With regard to Rule 60(b)(4), Geraldine argued that the

Dominican Decree was invalid because the Dominican court “lacked

jurisdiction.” Alternatively, Geraldine argued that, even if the

Dominican Decree were valid under the laws of the Dominican

Republic, it would not be entitled to comity.7 Accordingly,

Geraldine argued that her purported marriage to George was void

7
“Comity” means “[a] practice among political entities (as nations,
states, or courts of different jurisdictions) involving esp. mutual
recognition of legislative, executive, and judicial acts.” Black’s Law
Dictionary 303 (9th ed. 2009).
On appeal, the ICA concluded that the Dominican Decree was not
entitled to recognition on the basis of comity. Cvitanovich-Dubie, 123
Hawai#i at 273-75, 231 P.3d at 990-92. Because neither party has challenged
that conclusion, we do not discuss Geraldine or Nancy’s arguments concerning
comity in further detail.

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ab initio because the Dominican Decree did not terminate George

and Sylvie’s marriage, making George and Geraldine’s marriage

bigamous. Geraldine further argued that, because the family

court “did not have a ‘lawfully married’ couple before it,” it

was “without power to enter a divorce decree.”

Alternatively, Geraldine argued that the family court

should set aside the property division portion of the 11/28/03

Decree pursuant to Rule 60(b)(6), on the ground that George

“exercised undue influence in obtaining the property division,”

and “because the marriage was bigamous, and because [George]

committed fraud on the [c]ourt.” With regard to her allegations

of “fraud on the court,” Geraldine argued that George

“conceal[ed] the fact that he had never divorced Sylvie [],

thereby claiming a status and identity (i.e., a married man) to

gain access to [the family court] so he could use it as a device

to improperly obtain [Geraldine’s] assets.”

With regard to her allegations of undue influence,

Geraldine asserted that George “was an exceptionally effective

manipulator . . . . [and] the scale of his deception and the

techniques he used were extraordinary.” Geraldine asserted that

the Property Settlement Agreements showed that Geraldine

transferred “property, money, and other things of value to

[George] for no consideration, all within an extremely short

period of time.” Geraldine further asserted that she “understood

and believed that the divorce was only temporary[,]” and that she

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“did not have her guard up because she believed the divorce was

on paper only.” Geraldine stated that her assertions would be

supported “when testimony is taken and exhibits introduced,” and

that “all the particular ways in which the division was so

inequitable . . . will be shown in detail at the evidentiary

hearing.” However, Geraldine did not specifically request an

evidentiary hearing in her Rule 60 motion or her Memorandum in

Support of Motion.

2. Nancy’s Memorandum in Opposition

In her Memorandum in Opposition to Geraldine’s Rule 60

motion, Nancy, as Personal Representative of George’s estate,

asserted that (1) George and Sylvie were married on October 2,

1989 in Honolulu, Hawai#i; (2) a Dominican Republic court granted

a divorce decree terminating George and Sylvie’s marriage on

February 7, 1995; (3) while residing in Hawai#i, George

introduced Geraldine to Sylvie; (4) George and Geraldine’s

completed Marriage License Application indicated that George’s

former marriage ended in 1995 in the Dominican Republic; (5)

Geraldine signed the Marriage License Application and swore under

oath that the information contained therein was true and correct;

(6) George and Geraldine participated in a ceremonial marriage on

May 1, 1996; (7) at the time of the marriage ceremony, Geraldine

had actual or constructive knowledge of the Dominican Decree and

that it was obtained in the Dominican Republic; (8) Geraldine and

George subsequently met with Sylvie and Felicia Dubie (Felicia)

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(daughter of George and Sylvie) in Ottawa in 1997 and in

Disneyworld in 1998; (9) Geraldine became close with Felicia and

established a QTIP trust naming the children of George and Sylvie

as beneficiaries; (10) Geraldine filed for a divorce from George

in November 2003; and (11) after entry of the 11/28/03 Decree,

Geraldine continued to portray herself as married to George “in

order to protect her image, as well as the image of her

company[.]”8

With regard to Rule 60(b)(4), Nancy argued that

Geraldine’s assertions concerning the invalidity of her marriage

to George were without merit. Specifically, Nancy argued that

the Dominican Decree was valid and that, in any event, Geraldine

did not have standing to collaterally attack the Dominican

Decree. Nancy further argued that Geraldine was estopped from

challenging the validity of her marriage to George.

With regard to Rule 60(b)(6), Nancy argued that

Geraldine’s allegations “amount[ed] to a claim for relief based

on ‘fraud[,]’” and therefore fell under Rule 60(b)(3), rather

than Rule 60(b)(6). Nancy further argued that Geraldine’s motion

was untimely because it was not filed within one year of the

11/28/03 Decree, as required for motions brought pursuant to Rule

8
In support of these assertions, Nancy relied on, inter alia,
Sylvie’s sworn declaration, which was included as an exhibit to Nancy’s
Memorandum in Opposition. Although Geraldine has presented various challenges
to the family court’s reliance on Sylvie’s declaration in its findings of
fact, we do not rely on the assertions set forth in Sylvie’s declaration in
reaching our decision. Accordingly, we need not address whether the family
court erred in relying on facts set forth in Sylvie’s declaration.

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60(b)(3).

3. Subsequent proceedings

The family court held a hearing on Geraldine’s Rule 60

motion on October 8, 2007.9 No live testimony was presented.

The family court directed the parties to focus their argument on

Rule 60(b)(4), and the parties accordingly did not present any

argument on the merits of the Rule 60(b)(6) portion of

Geraldine’s motion. The parties’ arguments concerning Rule

60(b)(4) substantially reiterated and expanded upon the arguments

presented in their briefs.

In addition, the parties presented some argument as to

whether the family court was required to hold an evidentiary

hearing on Geraldine’s Rule 60 motion. For example, counsel for

Nancy argued that, “[s]ince under Ahlo[ v. Ahlo, 1 Haw. App. 324,

619 P.2d 112 (1980),] and Hayashi[ v. Hayashi, 4 Haw. App. 286,

666 P.2d 171 (1983)], the [Hawai#i S]upreme [C]ourt has

authorized the family court to have a threshold determination

without an evidentiary hearing on whether [the] Rule [60(b)]

motion should proceed and since we are the proponents of the

essential dismissal of that, it would appear appropriate that we

would argue first.”

Counsel for Nancy later reiterated:
First of all, the Hawaii Supreme Court has already
spoken about the procedure that we’re here on today.
Hayashi . . . , essentially citing Ahlo . . . says the

9
At the same hearing, the family court also heard Geraldine’s
motion to substitute Nancy as the defendant in this case.

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trial court may deny relief under Rule [60(b)] without
holding a hearing, and they decide the issue on the
basis of papers submitted. This went back to the Ahlo
case that essentially said the family court is not
required to hold a hearing in deciding whether or not
to grant relief under Rule 60.[ 10]

Counsel for Geraldine did not move for or otherwise

request an evidentiary hearing. To the contrary, counsel for

Geraldine stated during his argument:
And I think we can get rid of this whole thing
when you grant summary judgment to us on [the Rule
60(b)(4)] part of it. Bifurcate the [Rule 60(b)(6)]
part which is the labor intensive evidentiary part
that you really would rather not have to do because
it’s going to take a long time and that’s what we’re
gonna do in the circuit court is that case.[ 11]
Bifurcate the [60(b)(4)], [60(b)(6)]. You grant
summary judgment under [60(b)(4)], we’re outta here.

The family court did not orally rule on Geraldine’s

Rule 60 motion. On December 18, 2007, the family court entered

its “Order Denying Plaintiff’s Motion for Post-Decree Relief to

Vacate Divorce Decree or Set Aside Property Division Pursuant to

Hawaii Family Court Rule 60[(b)], Filed June 28, 2007.”

10
These arguments were made in relation to Nancy’s opposition to
Geraldine’s motion for substitution. Nancy argued that, because Geraldine had
failed to make a threshold showing that she was entitled to relief under Rule
60(b), it was not necessary for the family court to grant the motion for
substitution. Specifically, Nancy stated:

Under the papers, our arguments flow that this is not
a void judgment and that their claim for fraud is
time-barred and that Rule [60(b)(6)] is not a valid
option under the way they pled it. So, I don’t think
we need to substitute.
. . . .
Now, if you decide to, after the Rule [60(b)]
threshold hearing if that’s decided in their favor,
then yeah, obviously we have to substitute and proceed
(indiscernible) whatever proceedings we end up going
to and possibly for the purposes of taking an appeal
as well (indiscernible). . . .

11
This appears to be a reference to either In re Estate of George
Patrick Dubie, P. No. 06-1-0700, or Personal Prosperity, Inc. v. Dubie, Civil
No. 07-1-2141-11 GWBC, both in the Circuit Court of the First Circuit.

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Geraldine timely filed a notice of appeal and, on February 25,

2008, the family court entered its Findings of Fact and

Conclusions of Law (FOF/COL) with respect to Geraldine’s claims.

The family court’s FOFs/COLs provided, in pertinent part, as

follows:
III. FINDINGS OF FACT[]

5. George [] married Sylvie [] on October 2, 1989 in
Honolulu, Hawai#i.

6. On February 7, [sic] 1995, the [Dominican] court
granted [the Dominican] Decree, terminating the
marriage between [George] and Sylvie[.]

7. Notice of the [Dominican] Decree was mailed to
[George] that same day.

8. The [Dominican] Decree became a definite and final
ruling on the date of pronouncement, April 24, 1995.

9. Neither [George] nor Sylvie filed an appeal to set
aside the [Dominican] Decree.

10. The time-period [sic] to appeal the [Dominican]
Decree elapsed on April 7, 1995, two months after the
[Dominican] Decree was entered.

11. From February 2, 1995 until present, Sylvie relied
upon the validity of the [Dominican] Decree entered by
the [Dominican court].

12. Ever since the [Dominican] Decree was entered,
Sylvie has held herself out as being divorced from
[George].

13. Prior to [Geraldine’s Rule 60 motion], at no time
did anyone ever question the validity of the
[Dominican] Decree.

14. Sylvie did not question the validity of the
[Dominican] Decree because when purchasing a home in
1995, Sylvie successfully proved the validity of the
[Dominican] Decree to an attorney in the province of
Quebec, Canada.

15. In reliance on the [Dominican] Decree, Sylvie and
[George’s] daughter, Felicia (“Felicia”), had her last
name changed to “Dubie” so that she would be able to
live with her father.

16. In 1995, the U.S. Embassy certified and recognized
the [Dominican] Decree by acknowledging the Dominican
Republic divorce procedures.

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17. In or around March 1996, after his divorce from
Sylvie, [George] and [Geraldine] met. [Geraldine] is
co-founder of the diet herbal supplement company,
“Herbalife.”

18. Shortly thereafter, while residing in Hawai#i,
[George] introduced [Geraldine] to Sylvie.

19. With full knowledge of the [Dominican] Decree, on
or about April 30, 1996, [Geraldine] completed and
submitted a Marriage License Application to the
Department of Health for the State of Hawai#i.

20. The application for marriage license indicated
that [George’s] marriage to Sylvie ended in divorce in
1995 in the Dominican Republic, Caribbean.

21. [Geraldine] signed the Marriage License
Application and swore under oath that the information
contained in the application was true and correct to
the best of her knowledge.

22. On May 1, 1996, [George] and [Geraldine]
participated in a ceremonial marriage performed by a
person duly authorized to perform marriages in the
State of Hawai#i.

23. At the time of the marriage ceremony, [Geraldine]
had knowledge, or at least, had constructive knowledge
of the [Dominican] Decree and that it was obtained in
the Dominican Republic.

24. In the following few years, [George] and
[Geraldine] met with Sylvie and Felicia in Ottawa in
1997, and in Disneyworld in 1998.

25. Based on Sylvie’s meetings with [George] and
[Geraldine], Sylvie had an opportunity to observe
[George] and [Geraldine’s] relationship. [George]
relied upon the validity of the [Dominican] Decree and
held himself out as being divorced. Sylvie also
observed that after [George] and [Geraldine] were
married, they acted like a married couple, lived
together and introduced each other as husband and
wife.

26. [Geraldine] established a Qualified Terminable
Interest Property Trust (“QTIP Trust”) and named
Sylvie and [George’s] children as beneficiaries of the
QTIP Trust.

27. In November 2003, [Geraldine] filed a petition for
divorce and the [family court] granted it on November
[28], 2003.

28. After the [11/28/03 Decree] was entered,
[Geraldine] continued to portray the image that she
and [George] were still married in order to protect
her image as well as the image of her company,
“Herbalife.”

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29. On July 2, 2006, [George] was shot and killed in
Thailand. A Report of Death of An American Citizen was
filed on November 8, 2006.

[IV.] CONCLUSIONS OF LAW

30. The [family court] has subject matter jurisdiction
and personal jurisdiction over the parties pursuant to
HRS § 580-1.

31. [Geraldine’s] claims sound in fraud or other
intentional misconduct, and therefore are time-barred
pursuant to [HFCR Rule] 60(b)(3).

32. Determining whether a judgment should be set aside
pursuant to Rule 60(b) of the [HFCR] is not a matter
of discretion.

33. In the sound interest of finality, the concept of
a void judgment must be narrowly restricted.

34. [Geraldine] does not have standing to collaterally
attack the validity of the [Dominican] Decree in the
[family court].

35. The [Dominican] Decree is recognized by the
[family court] under the principle of comity. The
[11/28/03 Decree] is not void ab initio and should not
be set aside.

36. The facts in this case are not enough to overcome
the presumption of validity of [Geraldine’s] marriage
to [George].

37. [George] and [Geraldine’s] marriage is not void
because the purported impediment-the alleged bigamous
marriage-was eliminated by [George’s] death.

38. The [Dominican] Decree cannot be set aside based
on the principle of res judicata.

39. [Geraldine] is estopped from asserting that [her]
marriage to [George] is void based on the principle of
estoppel and unclean hands.

40. Property settlement agreements between husband and
wife made in contemplation of divorce or judicial
separation are favored by the courts and will be
strictly enforced if fair and equitable and not
against public policy.

41. The property division portion of a Divorce Decree
is an enforceable contract and should not be set
aside.

42. [Geraldine’s] assertion to set aside the property
division portion of the [11/28/03 Decree] is really a
creditor’s claim which should be decided by the
probate court.

43. [George] and [Geraldine] are at the very least,

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putative spouses for purposes of this court deciding
property division issues.

44. [Geraldine’s] claims to set aside the [11/28/03
Decree] and the [11/28/03 Decree’s] property division
portion are based on fraud and are therefore barred by
the one-year statute of limitations pursuant to Rule
60(b)(3) of the [HFCR].

(Formatting altered) (citations omitted).

C. ICA Appeal

In her Opening Brief, Geraldine alleged that the family

court erred in (1) refusing to vacate the 11/28/03 Decree because

it was void; (2) denying relief or an evidentiary hearing

pursuant to HFCR Rule 60(b)(6); (3) entering FOFs 6-8, 10-17, 19,

22-23, 25, and 27-28; and (4) entering COLs 30-32, and 34-44.

In her Answering Brief, Nancy essentially reiterated

the arguments she presented in the family court. Nancy further

argued that Geraldine was not entitled to an evidentiary hearing

on her Rule 60(b)(6) motion, insofar as the ICA held in Hayashi

that the family court may decide a Rule 60(b)(6) motion without a

hearing.

Geraldine did not raise any substantively new arguments

in her Reply Brief.

The ICA filed its published opinion in the instant case

on April 12, 2010. Cvitanovich-Dubie, 123 Hawai#i at 266, 231

P.3d at 983. With regard to Geraldine’s Rule 60(b)(4) claim that

the family court lacked subject matter jurisdiction to enter the

11/28/03 Decree because the Dominican Decree was void, the ICA

held that the Dominican Decree was not entitled to “pro forma

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recognition” on the basis of comity, id. at 273-75, 231 P.3d at

990-92, but was entitled to practical recognition on the basis of

quasi-estoppel, id. at 275-80, 231 P.3d at 992-97. Accordingly,

the ICA held that, based on FOFs 11 through 25,12 “the family

court did not abuse its discretion in finding that Geraldine was

estopped from challenging the validity of the Dominican Decree,

and COL 39 is not wrong.” Id. at 280, 231 P.3d at 997.

The ICA further held that Geraldine’s claims of fraud

and undue influence fell under Rule 60(b)(3). Id. at 281-82, 231

P.3d at 998-99. The ICA noted that:
[Rule 60(b)(3)] does not specify upon whom the adverse
party must have committed the fraud,
misrepresentation, or other misconduct. Therefore,
although Geraldine characterizes [George’s] alleged
fraud as “fraud on the court,” that fraud claim
nevertheless still falls under HFCR Rule 60(b)(3).
Further, a plain reading of HFCR Rule 60(b) reveals
that “undue influence” falls within Rule 60(b)(3) as
“other misconduct.”

Id. at 282, 231 P.3d at 999.

The ICA further noted that Geraldine’s claims were

filed more than one year after the 11/28/03 Decree was entered,

and were therefore untimely under Rule 60(b)(3). Id.

Accordingly, the ICA held, “the family court did not abuse its

discretion by failing to provide Geraldine relief or a hearing

regarding [her claims].” Id.

12
The ICA held that FOFs 11-16, 19, and 25, and a portion of FOF 23,
were not clearly erroneous. Id. at 276-78, 231 P.3d at 993-95. The ICA
further held that any error in the challenged portions of FOFs 6, 7, 10, 17
and 28 was harmless. Id. at 282, 231 P.3d at 999. The ICA did not address
Geraldine’s remaining challenges to the FOFs, in light of its conclusion that
Geraldine was estopped from challenging the Dominican Decree. Id. at 278,
283, 231 P.3d at 994, 1000.

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In light of the foregoing, the ICA did not address the

remaining issues raised by Geraldine in her Opening Brief. On

May 3, 2010, the ICA filed its judgment affirming the family

court’s “Order Denying Plaintiff’s Motion for Post-Decree Relief

to Vacate Divorce Decree or Set Aside Property Division Pursuant

to Hawaii Family Court Rule 60 [(b)], Filed on June 28, 2007.”

D. Geraldine’s application for a writ of certiorari

Geraldine timely filed an application for a writ of

certiorari on July 29, 2010. Nancy timely filed a response on

August 12, 2010.

In her application, Geraldine presents the following

questions:
A. Are estoppel or quasi estoppel available as
affirmative defenses to bar relief from a clearly void
ab initio Hawaii divorce decree, where allowing
estoppel would vitalize that which multiple Hawaii
statutes declare void, legalize what public policy and
the law have forbidden, and violate this [c]ourt’s
holdings in Godoy v. County of Hawaii, 44 Haw. 312,
354 P.2d 78 (1960) and Alvarez Family Trust v. Ass’n
of Owners, 121 Hawai#i 474, 221 P.3d 452 (2010)?
B. Is the application of quasi estoppel in this
case inconsistent with this [c]ourt’s holding in Yuen
Shee v. London Guaranty and Accident, 40 Haw. 213
(1953), and in facial violation of Anderson v.
Anderson, 59 Haw. 575, 585 P.2d 938 (1978)?
C. Did the Intermediate Court of Appeals (ICA)
commit grave error when it afforded practical
recognition to a void ab initio foreign divorce
decree?
D. Did the ICA commit grave error when it
affirmed estoppel in favor of a litigant with unclean
hands as a matter of law, and against one whose hands
were clean as a matter of law?
E. Did the ICA commit grave error when it held
that the standard of review for findings of fact
entered in the absence of any evidentiary hearing is
clearly erroneous, rather than de novo, and refused to
consider “the weight of the evidence” and the
“credibility” of witnesses when there was no live
testimony?
F. Did the ICA commit grave error when it held
that undue influence and fraud on the court fall
within HFCR Rule 60(b)(3), rather than HFCR Rule

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60(b)(6), and that the alternative relief sought -
i.e., to set aside the property settlement portion of
the decree - was therefore time barred?

II. Standards of Review

A. HFCR Rule 60(b)(4) motions

Under Rule 60(b)(4),
The determination of whether a judgment is void
is not a discretionary issue. It has been noted that
a judgment is void only if the court that rendered it
lacked jurisdiction of either the subject matter or
the parties or otherwise acted in a manner
inconsistent with due process of law.

In re Hana Ranch Co., 3 Haw. App. 141, 146, 642 P.2d 938, 941

(App. 1982) (citation omitted).

Accordingly, we review the family court’s denial of a

HFCR Rule 60(b)(4) motion de novo.

B. HFCR Rule 60(b)(6) motions

The family court’s denial of a motion under HFCR Rule

60(b)(6) is reviewed for abuse of discretion. Pratt v. Pratt,

104 Hawai#i 37, 42, 84 P.3d 545, 550 (2004). As the ICA noted in

Hayashi:
[s]ince Rule 60(b)(6) relief is contrary to the
general rule favoring finality of actions, the court
must carefully weigh all of the conflicting
considerations inherent in such applications. Once
the court has made a determination to grant or deny
relief, the exercise of its discretion will not be set
aside unless the appellate court is persuaded that,
under the circumstances of the case, the court abused
its discretion.

4 Haw. App. at 291, 666 P.2d at 175 (citations omitted).

“[A]n abuse of discretion occurs where the trial court

has clearly exceeded the bounds of reason or disregarded rules or

principles of law or practice to the substantial detriment of a

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party litigant.” Buscher v. Boning, 114 Hawai#i 202, 211, 159

P.3d 814, 823 (2007) (brackets in original) (quoting Office of

Hawaiian Affairs v. State, 110 Hawai#i 338, 351, 133 P.3d 767,

780 (2006)). In addition, “[t]he burden of establishing abuse of

discretion is on appellant, and a strong showing is required to

establish it.” In re RGB, 123 Hawai#i 1, 17, 229 P.3d 1066, 1082

(2010) (brackets in original) (citation omitted).

III. Discussion

Geraldine’s Rule 60 motion sought relief on alternative

grounds pursuant to Rule 60(b)(4) and Rule 60(b)(6). With regard

to Rule 60(b)(4), Geraldine argued in the family court that the

11/28/03 Decree was void on the ground that Geraldine and George

were never legally married because the Dominican Decree was void.

The family court denied Geraldine’s motion in this respect on

several grounds, including that the Dominican Decree was entitled

to comity, and that Geraldine was estopped from challenging the

validity of the Dominican Decree. On appeal, the ICA affirmed,

concluding that Geraldine was estopped from challenging the

validity of the Dominican Decree. Cvitanovich-Dubie, 123 Hawai#i

at 275-80, 231 P.3d at 992-97. Geraldine argues that the ICA

erred because estoppel is inapplicable to the facts of the

instant case. As set forth below, although the ICA did not err

in affirming the family court’s order with regard to Geraldine’s

claims under Rule 60(b)(4), its reasoning was erroneous in part.

Specifically, the ICA was not required to reach the issue of

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estoppel because the 11/28/03 Decree is not void within the

meaning of Rule 60(b)(4).

Alternatively, Geraldine argued in the family court

that the property division portion of the 11/28/03 Decree should

be set aside under Rule 60(b)(6), on the ground that the property

division was the result of “fraud on the court” and “undue

influence.” The family court denied Geraldine’s motion in this

respect, finding that Geraldine’s claims “sound[ed] in fraud or

other intentional misconduct[,]” and were therefore barred by the

one-year limitation on motions brought pursuant to Rule 60(b)(3).

The ICA affirmed, concluding that Geraldine’s claims of “fraud on

the court” and “undue influence” fell within Rule 60(b)(3) and

were accordingly untimely. Id. at 281-82, 231 P.3d at 998-99.

Geraldine argues that the ICA erred because “fraud on the court”

and “undue influence” are properly considered under Rule

60(b)(6). As set forth below, the ICA did not err in affirming

the family court’s order in this respect.

A. Geraldine could not be estopped from challenging the family
court’s jurisdiction to enter the 11/28/03 Decree

The ICA held that the circuit court erred in COL 35 in

recognizing the Dominican Decree on the basis of comity, id. at

273-75, 231 P.3d at 990-92, but that the Dominican Decree was

nonetheless entitled to practical recognition based on principles

of quasi-estoppel, id. at 275-80, 231 P.3d at 992-97. Having

thus concluded that Geraldine was estopped from contesting the

validity of the Dominican Decree, the ICA concluded that it was

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not required to address Geraldine’s points concerning the

adequacy of notice to her of the Dominican Decree, or whether the

Dominican Decree was subject to collateral attack.13 Id. at 280,

231 P.3d at 997. Accordingly, it appears that the ICA concluded

that the family court did not reversibly err in denying the Rule

60(b)(4) portion of Geraldine’s Rule 60 motion, on the ground

that Geraldine was estopped from contesting the validity of the

Dominican Decree. Id. at 275-80, 231 P.3d at 992-97. In

essence, the ICA concluded that Geraldine was estopped from

asserting that the 11/28/03 Decree was void.

However, Geraldine argued that the invalidity of the

Dominican Decree deprived the family court of jurisdiction to

enter the 11/28/03 Decree. “[I]t is well-settled that

subject-matter jurisdiction cannot be conferred upon a court by

agreement, stipulation, or consent of the parties[.]” Gilmartin

v. Abastillas, 10 Haw. App. 283, 292, 869 P.2d 1346, 1351 (1994).

Moreover, “[t]he lack of jurisdiction over the subject matter

cannot be waived by the parties.” Williams v. Aona, 121 Hawai#i

1, 8, 210 P.3d 501, 508 (2009) (quoting Chun v. Employees Ret.

13
As set forth in the family court’s COLs, the family court provided
several additional alternative grounds that could support its decision to deny
Geraldine’s Rule 60(b)(4) motion, including that Geraldine did not have
standing to collaterally attack the Dominican Decree in the family court.
There is substantial case law dealing with each of these issues. See
generally, R.F. Chase, Annotation, Domestic Recognition of Divorce Decree
Obtained in Foreign Country and Attacked for Lack of Domicil or Jurisdiction
of Parties, 13 A.L.R.3d 1419 (1967); Annotation, Vacating or Setting Aside
Divorce Decree After Remarriage of Party, 17 A.L.R.4th 1153, 1225-32 (1982)
(discussing decisions where a divorce decree is contested by a “[s]ubsequent
husband of divorced wife” or “[s]ubsequent wife of divorced husband”).
However, in light of the conclusion that the 11/28/03 Decree is not void
within the meaning of Rule 60(b)(4), this court need not address those issues.

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Sys., 73 Haw. 9, 13, 828 P.2d 260, 263 (1992)). It follows that

jurisdiction similarly cannot be created by estoppel. See Ins.

Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 702 (1982) (“[N]o action of the parties can confer

subject-matter jurisdiction upon a federal court. Thus, . . .

principles of estoppel do not apply[.]”) (citations omitted).

Accordingly, Geraldine could not be estopped from

challenging the family court’s jurisdiction to enter the 11/28/03

Decree. The ICA’s determination that Geraldine was estopped from

challenging the Dominican Decree thus cannot resolve whether the

11/28/03 Decree is void for lack of subject matter jurisdiction

pursuant to HFCR Rule 60(b)(4), and the ICA erred in failing to

address that issue.

B. The 11/28/03 Decree is not void under Rule 60(b)(4)

Geraldine argues that the family court’s 11/28/03

Decree is void because, as a result of the invalid Dominican

Decree, she and George were not legally married, and the family

court lacked jurisdiction to enter a divorce decree involving

unmarried persons. We conclude that Geraldine’s arguments do not

fall within the scope of Rule 60(b)(4).

“In the sound interest of finality, the concept of a

void judgment must be narrowly restricted.” Dillingham Inv.

Corp. v. Kunio Yokoyama Trust, 8 Haw. App. 226, 233, 797 P.2d

1316, 1320 (1990) (quoting 7 James Wm. Moore et al., Moore’s

Federal Practice ¶ 60.25[2], at 60-225, 60-229, 60-230 (2d ed.

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1990)). “The principles of judicial economy and judicial

finality operate as constraining influences upon the generosity

of the courts in declaring judgments void.” Isemoto Contracting

Co., Ltd. v. Andrade, 1 Haw. App. 202, 206, 616 P.2d 1022, 1026

(1980). The ICA has explained that:
The determination of whether a judgment is void is not
a discretionary issue. It has been noted that a
judgment is void only if the court that rendered it
lacked jurisdiction of either the subject matter or
the parties or otherwise acted in a manner
inconsistent with due process of law.[ 14] Wright &
Miller, Federal Practice and Procedure: Civil s 2862
(1973). Other authorities, cognizant of the
extraordinary remedy afforded by the rule and the need
to narrowly define it, have stated:

In brief, then, except for the rare case where
power is plainly usurped, if a court has the
general power to adjudicate the issues in the
class of suits to which the case belongs then
its interim orders and final judgment, whether
right or wrong, are not subject to collateral
attack . . . .

In re Hana Ranch Co., 3 Haw. App. at 146, 642 P.2d at 941-42

(emphasis added) (ellipses in original) (quoting 7 James Wm.

Moore et al., Moore’s Federal Practice ¶ 60.25 (1980)); see also

Dillingham Inv. Corp., 8 Haw. App. at 233-34, 797 P.2d at 1320

(“[I]f a court has the general power to adjudicate the issues in

the class of suits to which the case belongs then its interim

orders and final judgments, whether right or wrong, are not

subject to collateral attack, so far as jurisdiction over the

subject matter is concerned.”) (quoting 7 James Wm. Moore et al.,

Moore’s Federal Practice ¶ 60.25[2], at 60-229, 60-230 (2d ed.

14
Geraldine has not argued that the family court lacked jurisdiction
over the parties, or that the 11/28/03 Decree violated due process.
Accordingly, we do not address these other two bases on which a judgment may
be found void pursuant to HFCR Rule 60(b)(4).

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1990)).

It should be noted that this court has concluded that a

judgment was void under Rule 60(b)(4) on only one occasion. In

Stafford v. Dickison, 46 Haw. 52, 63, 374 P.2d 665, 672 (1962),

we held that a default judgment was void under Hawai#i Rules of

Civil Procedure (HRCP) Rule 60(b)(4)15 on the ground that the

defendant had been denied due process. There, a default judgment

was ordered against the defendant during a hearing at which

defendant did not appear. Id. However, “defendant’s

nonappearance was due to the court’s abuse of discretion in

permitting the withdrawal of his counsel without notice.” Id. at

63, 374 P.2d at 671. Moreover, the court “erroneously reliev[ed]

plaintiff of the duty of giving notice of application for default

judgment” to the defendant. Id. Accordingly, this court

concluded that the defendant did not have proper notice, and held

that the default judgment was void pursuant to HRCP Rule

60(b)(4). Id. at 63, 374 P.2d at 672.

In the instant case, there can be no question that

Geraldine’s Complaint for Divorce was “in the class of suits”

that the family court “has the general power to adjudicate.” See

15
The ICA has explained that:

Rule 60(b), HFCR, is similar to Rule 60(b), [HRCP] and
Rule 60(b), Federal Rules of Civil Procedure (FRCP),
except for some minor variations which do not affect
the provisions concerned here. Therefore, the
treatises and cases interpreting HRCP, Rule 60(b) and
FRCP, Rule 60(b) provide persuasive reasoning for the
interpretation of HFCR 60(b).

Hayashi, 4 Haw. App. at 290 n.6, 666 P.2d at 174 n.6.

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Dillingham Inv. Corp., 8 Haw. App. at 233-34, 797 P.2d at 1320.

The family court has “[e]xclusive original jurisdiction in

matters of annulment, divorce, and separation, . . . subject []

to appeal according to law[.]” HRS § 580-1 (1993). “The family

court shall decree a divorce from the bond of matrimony upon the

application of either party when the court finds . . . [t]he

marriage is irretrievably broken[.]” HRS § 580-41(1) (1993).

“If after a full hearing, the court is of opinion that a divorce

ought to be granted from the bonds of matrimony a decree shall be

signed, filed and entered, which shall take effect from and after

such time as may be fixed by the court in the decree.” HRS

§ 580-45 (1993).

Geraldine filed her Complaint for Divorce on

November 6, 2003. By signing the Complaint, Geraldine

“declare[d], under penalty of perjury, that the statements made

[therein were] true and correct to the best of [her] knowledge,

information and belief.” The Complaint read in pertinent part as

follows:

1. Jurisdiction.
I and/or my spouse, the Defendant, have lived or
have been physically present in the State of
Hawai#i for a continuous period of at least six
(6) months and I have lived and/or been
physically present on the Island of O#ahu for a
continuous period of at least three (3) months
immediately preceding this application.
2. Marriage
The parties (plaintiff and spouse) are lawfully
married to each other.
. . . .
8. Grounds
Pursuant to HRS Section 580-41, I allege that
the grounds for divorce are as follows . . .
X The marriage is irretrievably broken.
. . . .

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It is requested of the Court:
That a decree be entered granting a divorce from
the bonds of matrimony . . . .

On November 7, 2003, George filed an Appearance and

Waiver, acknowledging receipt of a filed copy of the Complaint

and Summons in the divorce action, and consenting to a hearing of

the complaint without his presence.

Based on the foregoing, the family court did not

“plainly usurp[]” power in granting the 11/28/03 Decree. See

Dillingham Inv. Corp., 8 Haw. App. at 233-34, 797 P.2d at 1320;

see also Nemaizer v. Baker, 793 F.2d 58, 65 (2d Cir. 1986) (“[A]

court will be deemed to have plainly usurped jurisdiction only

when there is a ‘total want of jurisdiction’ and no arguable

basis on which it could have rested a finding that it had

jurisdiction.”) (citation omitted).

Nevertheless, Geraldine argues that the 11/28/03 Decree

is void because “divorce presupposes and requires a valid

marriage.” Geraldine further argues that the 11/28/03 Decree is

void pursuant to HRS § 1-6, which provides that “[w]hatever is

done in contravention of a prohibitory law is void, although the

nullity be not formally directed.” Put another way, Geraldine

argues that her marriage was bigamous and therefore violated

prohibitory law, and that the marriage was therefore void ab

initio pursuant to HRS § 1-6.

Assuming arguendo that the question of whether a

marriage is valid goes to the family court’s jurisdiction to

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enter a divorce,16 Geraldine’s challenges to the family court’s

jurisdiction would have been relevant had she raised them in the

divorce proceedings or in a direct appeal. However, on a Rule

60(b)(4) motion, the principle of finality narrows the scope of

review. Dillingham Inv. Corp., 8 Haw. App. at 233-34, 797 P.2d

16
We note that HRS § 580-1, concerning the jurisdiction of the
family court, provides only that “[n]o absolute divorce from the bond of
matrimony shall be granted for any cause unless either party to the marriage
has been domiciled or has been physically present in the State for a
continuous period of at least six months next preceding the application
therefor.” (Emphasis added). HRS § 580-1 does not contain a jurisdictional
requirement that the parties be lawfully married in order to seek a divorce.
Rather, it appears that a valid marriage is more properly considered a
substantive requirement for a valid divorce. See HRS § 580-1 (setting forth
when the family court “shall decree a divorce from the bond of matrimony”)
(emphasis added); cf. Whitehead v. Whitehead, 53 Haw. 302, 315-16, 492 P.2d
939, 947 (1972) (noting that the “jurisdictional” nature of the domicile
requirement in HRS § 580-1 did not mean that the court “was without authority
to hear the case in the absence of the required proof of domicile” but that
the domicile provision “sets forth a substantive requirement for divorce”);
Puckett v. Puckett, 94 Hawai#i 471, 482-83, 16 P.3d 876, 887-88 (App. 2000)
(applying Whitehead, 53 Haw. at 315, 492 P.2d at 947); see also Kansas City S.
Ry. Co. v. Great Lakes Carbon Corp., 624 F.2d 822, 825 (8th Cir. 1980)
(rejecting an argument that a judgment was void under FRCP Rule 60(b)(4), and
noting that an “error in interpreting a statutory grant of jurisdiction is not
equivalent to acting with total want of jurisdiction” and that “[s]uch an
erroneous interpretation does not render the judgment a complete nullity”).
Tagupa v. Tagupa, 108 Hawai#i 459, 121 P.3d 924 (App. 2005),
further supports an inference that the requirement of a valid marriage is not
jurisdictional. There, Ronnie-Jean Kuulei Tagupa (Ronnie-Jean) and Vincent
Peter Tagupa (Vincent) were married on September 15, 1989. Id. at 459, 461,
121 P.3d at 924, 926. In 2001, Ronnie-Jean filed a Complaint for Divorce and
Vincent subsequently filed a Counter-Claim for Annulment. Id. at 461-62, 121
P.3d at 926-27. Ronnie-Jean subsequent filed a Certified Copy of the Judgment
of Divorce, indicating that Thornton G. Sanders (Sanders) obtained a Judgment
of Divorce terminating his marriage to Ronnie-Jean on December 21, 1989. Id.
at 462, 121 P.3d at 927. Despite this undisputed evidence that Ronnie-Jean’s
divorce from Sanders had not been finalized at the time of her marriage to
Vincent, the family court denied Vincent’s claim for annulment and entered a
divorce decree. Id.
On appeal, the ICA concluded that Ronnie-Jean and Vincent had not
satisfied the requirements for a valid marriage contract because Ronnie-Jean
still had a living lawful husband at the time of her marriage to Vincent. Id.
at 465, 121 P.3d at 930. The ICA concluded that the family court abused its
discretion in entering the divorce decree and denying Vincent’s claim for
annulment, and accordingly vacated portions of the family court’s divorce
decree and remanded. Id. at 465-67, 121 P.3d at 930-32 (holding that “the
family court disregarded rules or principles of law or practice to the
substantial detriment of a party litigant”). Although the ICA determined that
the family court erred in entering the divorce decree, it did not state that
the error was jurisdictional.

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at 1320. Because the family court had “power to adjudicate the

issues in the class of suits to which the case belongs,” i.e.,

divorce proceedings, its judgment is not subject to collateral

attack pursuant to HFCR Rule 60(b)(4). See In re Hana Ranch Co.,

3 Haw. App. at 146, 642 P.2d at 941-42 (citation omitted) (“[I]f

a court has the general power to adjudicate the issues in the

class of suits to which the case belongs then its interim orders

and final judgment, whether right or wrong, are not subject to

collateral attack.”); see also Dillingham Inv. Corp., 8 Haw. App.

at 233-34, 797 P.2d at 1320 (“[I]f a court has the general power

to adjudicate the issues in the class of suits to which the case

belongs then its interim orders and final judgments, whether

right or wrong, are not subject to collateral attack, so far as

jurisdiction over the subject matter is concerned.”).

Accordingly, although the ICA erred in its reasoning,

it did not err in affirming the family court’s order denying

Geraldine’s motion under Rule 60(b)(4).17

C. Geraldine’s claims of “fraud on the court” and “undue
influence” fall within Rule 60(b)(3) and are therefore
untimely

In addition to her argument under Rule 60(b)(4),

17
Based on the foregoing, the ICA was not required to address
whether Geraldine was estopped from contesting the validity of the Dominican
Decree. In addition, insofar as FOFs 11 through 16, 19, 25 and that part of
FOF 23 concerning Geraldine’s knowledge of the Dominican Decree, go to either
the validity of the Dominican Decree or Geraldine’s ability to collaterally
attack the Dominican Decree, the ICA was not required to address Geraldine’s
challenge to those FOFs. Accordingly, we do not address Geraldine’s
challenges to the ICA’s application of quasi-estoppel, and need not resolve
whether the ICA applied the proper standard of review in considering the
family court’s FOFs.

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Geraldine argues that the Property Settlement Agreements

attendant to the 11/28/03 Decree should be set aside under Rule

60(b)(6) because they were the result of George’s “fraud upon the

court” and “undue influence.” However, the ICA concluded that

Rule 60(b)(3) applies to those claims. Cvitanovich-Dubie, 123

Hawai#i at 281-82, 231 P.3d at 998-99. Accordingly, the ICA

concluded that Geraldine’s Rule 60 motion was untimely under Rule

60(b)(3), because it was brought more than one year after the

11/28/03 Decree was entered. Id. at 282, 231 P.3d at 999. As

set forth below, the ICA did not err in concluding that

Geraldine’s claims of “fraud upon the court” and “undue

influence” were properly considered under principles applicable

to Rule 60(b)(3) motions, and were accordingly untimely.

Rule 60(b)(3) provides that the court may relieve a

party of a final judgment for the reasons of “fraud (whether

heretofore denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an adverse party.”

Under Rule 60(b)(3), a motion for relief from judgment must be

made “not more than one year after the judgment, order, or

proceedings was entered or taken.” Rule 60(b)(3).

In contrast, Rule 60(b)(6) provides that the court may

relieve a party of a final judgment for “any other reason

justifying relief[.]” A motion for relief under Rule 60(b)(6)

must be made “within a reasonable time.” Rule 60(b). The ICA

has explained that, in bringing a motion under Rule 60(b)(6), a

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movant must meet three threshold requirements: “the movant must

show that (1) the motion is based on some reason other than those

specifically stated in clauses 60(b)(1) through (5); (2) the

reason urged is such as to justify the relief; and (3) the motion

is made within a reasonable time.” Hayashi, 4 Haw. App. at 290,

666 P.2d at 174 (emphasis added) (citation omitted).

In the instant case, Geraldine filed her Rule 60 motion

on June 28, 2007, more than three years after the family court’s

11/28/03 Decree. Accordingly, if her claims are construed as

falling within the provisions of Rule 60(b)(3), her Rule 60

motion was untimely. See Rule 60(b). In contrast, if

Geraldine’s claims are construed as falling within the provisions

of Rule 60(b)(6), relief is available if the court finds her

motion was made “within a reasonable time,” and there are

“reason[s] justifying relief.” See Rule 60(b); see also Hayashi,

4 Haw. App. at 290-91, 666 P.2d at 174-75.

As set forth below, Geraldine’s claims of “fraud upon

the court” and “undue influence” fall within the provisions of

Rule 60(b)(3) and are therefore untimely.

1. Fraud on the court

This court has noted that, “[s]ince the remedy for

fraud on the court is far reaching, it only applies to very

unusual cases involving ‘far more than an injury to a single

litigant[,]’ but rather, a ‘corruption of the judicial process

itself.’” Schefke v. Reliable Collection Agency, Ltd., 96

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Hawai#i 408, 431 n.42, 32 P.3d 52, 75 n.42 (2001) (citation

omitted) (some brackets in original); see also Matsuura v. E.I Du

Pont de Nemours & Co., 102 Hawai#i 149, 171, 73 P.3d 687, 709

(2003) (Acoba, J., concurring and dissenting) (“fraud on the

court is not fraud on a party”). It is generally accepted that

fraudulent conduct such as perjury or non-disclosure by a party,

standing alone, is insufficient to make out a claim for fraud on

the court. See, e.g., Gleason v. Jandrucko, 860 F.2d 556, 559-60

(2d Cir. 1988) (“[N]either perjury nor nondisclosure, by itself,

amounts to anything more than fraud involving a single

litigant.”); Lockwood v. Bowles, 46 F.R.D. 625, 632-34 (D.D.C.

1969) (“[W]here the court or its officers are not involved, there

is no fraud upon the court within the meaning of [FRCP] Rule

60(b).”); see also 12 James Wm. Moore et al., Moore’s Federal

Practice ¶ 60.21[4][c] (3d ed. 2010) (“Fraud on the court may not

be established simply by showing some misconduct by one of the

parties to the suit. . . . If fraud on the court were to be

given a broad interpretation that encompassed fraudulent

misconduct between the parties, a judgment would always remain

subject to challenge, and the one-year time limitation applicable

to motions based on Rule 60(b)(3) would be meaningless.”)

(footnotes omitted).

This court has similarly explained that:
Not any fraud connected with the presentation of
a case amounts to fraud on the court. It must be a
“direct assault on the integrity of the judicial
process.” Courts have required more than nondisclosure
by a party or the party’s attorney to find fraud on

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the court. Examples of such fraud include “bribery of
a judge,” and “the employment of counsel in order to
bring an improper influence on the court.”

Schefke, 96 Hawai#i at 431, 32 P.3d at 75 (citations omitted);

cf. Child Support Enforcement Agency v. Doe, 98 Hawai#i 499, 504,

51 P.3d 366, 371 (2002) (holding that an allegation that “counsel

had lied during the underlying proceedings in order to induce [a

party] to agree to the judgment of paternity” was properly

considered as fraud under HFCR Rule 60(b)(3)).

Here, the record does not establish that George knew

the Dominican Decree was invalid, or that he deliberately

misrepresented his marital status to the family court.18

Moreover, Geraldine’s allegation that George “conceal[ed] the

fact that he had never divorced Sylvie” in order to “gain access

18
We respectfully disagree with the dissent’s assertion that
Geraldine established George’s knowledge of the invalidity of the Dominican
Decree through (1) Geraldine’s declaration that she realized, after George’s
death, that George and Sylvie were not lawfully divorced; and (2) an
attorney’s declaration that, in his view, the Dominican Decree was
substantively invalid. Dissenting opinion at 34-35. Respectfully, these
declarations do not purport to address George’s knowledge as to the validity
of the Dominican Decree. Further, we are reluctant to ascribe import to the
fact that, subsequent to their divorce, George and Sylvie were denominated as
“husband” and “wife” in a Variation of Separation Agreement that altered their
agreement with regard to custody of their daughter. See dissenting opinion at
35-36. It is not uncommon for divorced parties to be referred to in this
manner, see, e.g., Weinberg v. Dickson-Weinberg, 121 Hawai#i 401, 220 P.3d 264
(App. 2009), vacated in non-relevant part by Weinberg v. Dickson-Weinberg, 123
Hawai#i 68, 229 P.3d 1133 (2010), and the mere use of those terms in the
agreement does not establish that George knew the Dominican Decree was
invalid.
We also respectfully disagree with the dissent’s suggestion that
George concealed his marital status from the family court during the divorce
proceedings because he filed an appearance and waiver form, and because George
indicated in that form that he agreed to the matters set forth in an agreement
incident to divorce. Dissenting opinion at 36-37. Although these facts
indicate that George “held himself out as being married to Geraldine,” id.,
they do not establish that he purposefully concealed information or made a
fraudulent representation to the court.
We further note that it was Geraldine, rather than George, who
declared, under penalty of perjury, that “[t]he parties . . . [were] lawfully
married to each other.” In contrast, none of George’s responsive submissions
to the family court aver to the legality of his marriage to Geraldine.

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to [the family court],” is an allegation of nondisclosure by an

adverse party, rather than an allegation amounting to a “‘direct

assault on the integrity of the judicial process.’”19 See

Schefke, 96 Hawai#i at 431, 32 P.3d at 75. Although Geraldine

styles this portion of her motion as one for “fraud on the

court,” the substance of her allegations does not rise to the

level of fraud on the court. Accordingly, this allegation is

properly evaluated as “fraud . . ., misrepresentation, or other

misconduct of an adverse party” under Rule 60(b)(3).20

19
The dissent cites Kawamata Farms, Inc. v. United Agri Products, 86
Hawai#i 214, 948 P.2d 1055 (1997), and Southwest Slopes, Inc. v. Lum, 81
Hawai#i 501, 918 P.2d 1157 (App. 1996), for the proposition that “non-
disclosure can amount to fraud on the court when the party and the trial court
have no reason to question the representation, and the court relies on the
representation when issuing its decision.” Dissenting opinion at 42 (footnote
omitted). However, Kawamata Farms and Southwest Slopes do not stand for this
proposition and, in any event, are distinguishable.
In Kawamata Farms, the circuit court concluded that the defendants
had committed “discovery fraud upon the circuit court” by, inter alia,
fraudulently asserting to the Discovery Master that the work product privilege
barred discovery of certain documents. 86 Hawai#i at 229-30, 948 P.2d at
1070-71. Thus, Kawamata Farms did not involve “non-disclosure,” but rather
fraudulent misrepresentations that formed the substantive basis for the
circuit court’s discovery orders. Moreover, this court relied on the
“egregious nature of the fraud” perpetrated by defendants in allowing the
plaintiffs to seek additional affirmative relief under Rule 60(b)(3),
notwithstanding that Rule 60(b) can generally only be used to set aside a
prior order or judgment. Id. at 256-57, 948 P.2d at 1097-98.
In Southwest Slopes, the asserted fraud involved a potentially
false affidavit by a party, as well as an apparently false affidavit and
letter by the party’s attorney. 81 Hawai#i at 511, 918 P.2d at 1167. It is
well-settled that fraud perpetuated by an officer of the court can constitute
fraud on the court. See Schefke, 96 Hawai#i at 431, 32 P.3d at 75 (citations
omitted) (noting that “the employment of counsel in order to bring an improper
influence on the court” can constitute fraud on the court). Thus, the ICA
recognized “[t]he possibility that Plaintiffs used fraud upon the court” in
obtaining summary judgment. Sw. Slopes, 81 Hawai#i at 511, 918 P.2d at 1167
(emphasis added).

20
Because we conclude that Geraldine’s claims do not constitute
fraud on the court but rather “fraud . . ., misrepresentation, or other
misconduct of an adverse party” that is properly considered under Rule
60(b)(3), we do not resolve whether fraud on the court properly falls under
Rule 60(b)(3) or Rule 60(b)(6). Although the dissenting opinion urges us to
address this issue, dissenting opinion at 43 n.22, in light of our holding,
any attempt to do so would be considered dicta.

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Geraldine cites several cases which she suggests stand

for the proposition that her claim is properly considered under

HFCR Rule 60(b)(6). However, these cases are inapposite and

accordingly do not support Geraldine’s position.21

Accordingly, the ICA did not err in holding that the

family court did not abuse its discretion in denying Geraldine

relief in this respect.

2. “Undue influence”

The ICA concluded that “a plain reading of HFCR Rule

21
In Kawamata Farms, this court held that a defendant’s extensive
discovery abuses constituted fraud on the court. 86 Hawai#i at 256-57, 948
P.2d at 1097-98. However, this court affirmed the grant of relief pursuant to
HRCP Rule 60(b)(3), rather than Rule 60(b)(6). Id. at 257-58, 948 P.2d at
1098-99.
In Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 239
(1944), an action was brought independent of Rule 60(b), for “leave to file a
bill of review . . . to set aside a judgment[,]” Id. at 239, and the only
discussion of FRCP Rule 60(b) was in the dissent, id. at 255-56. Moreover,
Hazel-Atlas Glass was decided in 1944, at a time when “there was considerable
doubt whether fraud was a ground for a motion under [FRCP] Rule 60(b) or
whether it could be attacked only by an independent action.” 11 Wright,
Miller & Kane, Federal Practice and Procedure: Civil 2d § 2860 at 310 (2d ed.
1995). In 1946, FRCP Rule 60(b) was amended to include “fraud” as an express
ground for relief from judgment. FRCP Rule 60 advisory committee’s notes on
1946 amdt.
In Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 45 (1st
Cir. 1995), Reintjes brought an independent action for fraud on the ground
that an employee of Riley Stoker committed perjury during arbitration
proceedings that led to a settlement agreement two years earlier. The United
States Court of Appeals for the First Circuit rejected the argument that
Reintjes’ claim could proceed as an independent action for fraud on the court,
and instead concluded that “perjury alone” was insufficient to bring a common
law cause of action for fraud independent of FRCP Rule 60(b)(3). Id. at 48-
49. Accordingly, the court concluded that Rientjes’ claim was subject to the
limitations of FRCP Rule 60(b)(3) and was untimely since it was filed “some
two years” after the underlying judgment. Id. at 45, 49.
Finally, in Southwest Slopes, the ICA vacated a grant of summary
judgment in defendant’s favor on direct appeal. 81 Hawai#i at 502, 918 P.2d
at 1158. The ICA noted “[t]he possibility that Plaintiffs used fraud upon the
court when obtaining the summary judgment,” and that “[f]raud,
misrepresentation, and circumvention used to obtain a judgment are generally
regarded as sufficient cause for the opening or vacating of the judgment.”
Id. at 511, 918 P.2d at 1167 (citation omitted). Although not directly
relevant because it was decided on direct appeal, the ICA’s conclusion
indicates that fraud on the court is properly considered as a type of “fraud.”

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60(b) reveals that ‘undue influence’ falls within Rule 60(b)(3)

as ‘other misconduct.’” Cvitanovich-Dubie, 123 Hawai#i at 282,

231 P.3d at 999. Geraldine argues that the ICA erred because

“undue influence is deemed to be a matter within Rule

60(b)(6)[.]”

Rule 60(b)(3) allows a party to move for relief from

judgment on the basis of “fraud . . ., misrepresentation, or

other misconduct of an adverse party[.]” Rule 60(b)(6) allows a

party to move for relief for “any other reason justifying relief

from the operation of the judgment.” (Emphasis added). Thus, in

order to take advantage of the potentially more lenient

timeliness provisions in clause (6), “the motion must be based

upon some reason other than those stated in clauses (1) through

(5).” Child Support Enforcement Agency, 98 Hawai#i at 504, 51

P.3d at 371. Hawai#i courts have not directly addressed whether

a claim of undue influence falls under clause (3) or (6) of Rule

60(b). However, the plain language of the rule indicates that

clause (3) governs misconduct by the non-moving party. Compare

HFCR Rule 60(b)(3) (“fraud . . ., misrepresentation, or other

misconduct of an adverse party”) (emphasis added) with HFCR Rule

60(b)(1) (“mistake, inadvertence, surprise, or excusable

neglect”). Although undue influence is not specifically

identified in clause (3), “other misconduct of an adverse party”

is a catch-all provision that reasonably includes the “undue

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influence” Geraldine alleges.22 Cf. Anderson v. Cryovac, Inc.,

862 F.2d 910, 923 (1st Cir. 1988) (“For the term [misconduct] to

have meaning in the [FRCP] Rule 60(b)(3) context, it must differ

from both ‘fraud’ and ‘misrepresentation.’ Definition of this

difference requires us to take an expansive view of

‘misconduct.’”).

Moreover, because HFCR Rule 60(b) was patterned after

FRCP Rule 60(b),23 the history of the federal rule is highly

persuasive as to the purpose of the Hawai#i rule, absent contrary

intent in Hawai#i. The history of the federal rule strongly

supports the conclusion that undue influence falls within clause

(3), rather than clause (6). The FRCP were adopted in 1937, and

22
We respectfully disagree with the dissent’s assertion that we have
“abandon[ed] established statutory construction rules” by relying on the plain
language of Rule 60(b)(3). Dissenting opinion at 45. Moreover, our
interpretation does not leave Rule 60(b)(3) “without any manageable limits,”
dissenting opinion at 45, inasmuch as the rule is limited to the conduct of an
adverse party. See 11 Wright, Miller & Kane, Federal Practice and Procedure:
Civil 2d § 2864 at 352-53 (“Fraud by the party’s own counsel, by a
codefendant, or by a third-party witness does not fit within clause (3) of the
rule, which requires fraud by an adverse party, and relief has been granted
under clause (6) instead.”).
Further, we respectfully disagree with the dissent’s assertion
that undue influence does not fall under Rule 60(b)(3) because it is “based on
conduct that is different from fraud and misrepresentation.” Dissenting
opinion at 28-29. If relief under Rule 60(b)(3) were limited to conduct
involving false representations, as the dissent asserts, the phrase “other
misconduct” would be rendered surplusage. Although the dissent points to
other “causes of action” (such as defamation, libel and slander) that also
involve false representations, dissenting opinion at 45, it does not appear
that these causes of action could be grounds for setting aside a judgment
pursuant to Rule 60(b)(3).

23
The HFCR were patterned after the HRCP, which in turn were
patterned after the FRCP. J. Garner Anthony, Chairman, Hawai#i Procedural
Rules Committee, Foreword to Hawai#i Rules of Civil Procedure, at ii (1953);
Letter from the Honorable Paul C. Kokubun & V. Thomas Rice, Co-Chairmen,
Hawai#i Family Court Rules Drafting Committee, to committee members (June 24,
1974) (attached to June 24, 1974 draft of HFCR). As discussed supra in note
15, the relevant portions of the current text of HFCR Rule 60(b) and FRCP Rule
60(b) are virtually identical.

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became effective in 1938. Order of December 20, 1937, 302 U.S.

783 (1937); 28 U.S.C.A. following § 723c. Prior to that time,

the federal district courts were subject to an inflexible rule

concerning relief from judgments, which generally prevented the

district court from reconsidering its final judgments after the

expiration of the term in which the judgment was rendered. James

Wm. Moore & Elizabeth B.A. Rogers, Federal Relief from Civil

Judgments, 55 Yale L.J. 623, 627 (1946). However,
[e]xceptions to this general rule were the
utilization, under certain circumstances, of the
ancillary remedies of coram nobis, coram vobis, audita
querela, bill of review and bill in the nature of a
bill of review--remedies which had grown up to give
relief after term time in certain limited situations;
the occasional utilization of the doctrine of the
court’s inherent power over its judgments; and the
independent action in equity to enjoin enforcement of
a judgment.

Id. (footnote omitted).

When the FRCP were promulgated, they were “generally

supposed to cover the field” concerning the practice for

obtaining relief from judgments. Advisory Committee Notes to

1946 Amendment to FRCP Rule 60 (discussing the promulgation of

the FRCP). However, a number of federal decisions initially

concluded that efforts to obtain relief through the older

ancillary and equitable remedies, such as a bill of review or

coram nobis, were proper despite the adoption of the FRCP. See

id.; see also Moore & Rogers, 55 Yale L.J. at 653-82.

Accordingly, amendments to FRCP Rule 60(b) were promulgated in

1946 to “abolish[] the use of bills of review and the other

common law writs referred to,” and to permit “either by motion or

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by independent action, the granting of various kinds of relief

from judgments which were permitted in the federal courts prior

to the adoption of these rules[.]” Advisory Committee Notes to

1946 Amendment to FRCP Rule 60. Put another way, FRCP Rule 60(b)

effectively superceded the ancillary and equitable remedies with

respect to the practice for obtaining relief from judgments.

Federal courts have indicated that “[FRCP] Rule

60(b)(3) is the lineal descendant of the equity rule that a court

may alter or annul, because of fraud or undue influence, a

written instrument (such as a contract or patent-but also a

court’s own judgment), only if the fraud or undue influence is

proved by clear and convincing evidence.”24 Ty Inc. v.

Softbelly’s, Inc., 517 F.3d 494, 498 (7th Cir. 2008) (emphasis

added) (citations omitted); Massi v. Walgreen Co., No.

3:05-cv-425, 2008 WL 2066453, at *3 (E.D. Tenn. May 13, 2008).

In contrast, FRCP Rule 60(b)(6), which was added with the

amendments promulgated in 1946, was “an unprecedented addition to

24
The dissent asserts that this statement by the Seventh Circuit is
erroneous because it cites Hazel-Atlas Glass, 322 U.S. at 244-45, for support,
and the opinion in Hazel-Atlas Glass case does not contain the words “undue
influence.” Dissenting opinion at 49. However, it is clear that, prior to
the adoption of the 1946 amendments to the FRCP, a suit in equity could be
used to alter or annul a written instrument or judgment on the grounds of
fraud or undue influence. See, e.g., Wagg v. Herbert, 215 U.S. 546, 551-52
(1910) (“[I]t is well established that, in a suit in equity between parties,
in which fraud, oppression, and undue influence are charged, the court is not
concluded by that which appears on the face of the papers, but may institute
an inquiry into the real facts of the transactions. So thoroughly is this
doctrine established that any discussion of the cases in this and other courts
affirming it would be useless. They rest upon elementary principles of
equity.”) (emphasis added); cf. Griffith v. Bank of New York, 147 F.2d 899,
901 (2d. Cir. 1945) (holding that an allegation that a judgment was procured
by the trustee’s threat to tie up the property indefinitely unless settlement
was made constituted an allegation of duress or fraud sufficient to set aside
a prior judgment under a court’s equity powers).

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the Rules” that could be used to “grant relief in situations

never covered by the old post-term remedies[.]” Note, Federal

Rule 60(B): Relief From Civil Judgments, 61 Yale L.J. 76, 81 &

n.25 (1952); see also 11 Wright, Miller & Kane, Federal Practice

and Procedure: Civil 2d § 2864 at 350 (footnote omitted) (noting

that FRCP Rule 60(b)(6) went “beyond the grounds for relief that

would have been available under older procedures”). Thus,

because a claim of undue influence was cognizable under the

equity rules, it appears that it is properly cognizable under

FRCP Rule 60(b)(3), rather than Rule 60(b)(6). Cf. In re Leisure

Corp., No. C-03-03012 RMW, 2007 WL 607696, at *5 (N.D. Cal. Feb.

23, 2007) (holding that allegations of duress were properly

considered under FRCP Rule 60(b)(3)); Interactive Edge, Inc. v.

Martise, No. 97 Civ. 3354(RO), 1998 WL 35131, at *3 (S.D.N.Y.

Jan. 30, 1998) (“[Defendant’s] allegations of threats from

plaintiff’s counsel, creating a climate of extreme duress under

which [defendant] signed the Settlement Agreement, raise the

specter of Rule 60(b)(3)[] . . . .”).

Other states also appear to treat allegations of undue

influence as “other misconduct of an adverse party” under

provisions similar to HFCR Rule 60(b)(3). See, e.g., Self v.

Maynor, 421 So. 2d 1279, 1280-81 (Ala. Civ. App. 1982) (holding

that a claim of “fraud and/or undue influence” does not fall

within the purview of Alabama Rules of Civil Procedure Rule

60(b)(6) because “Rule 60(b)(6) is mutually exclusive from other

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rule 60(b) motions” and “the relief sought falls clearly within

the purview of either 60(b)(1) or (2) or (3)”); Rothschild v.

Devos, 757 N.E.2d 219, 224 n.9 (Ind. Ct. App. 2001) (“Duress and

undue influence could presumably be grounds for relief from

judgment under [Indiana Rules of Trial Procedure Rule] 60(B)(3)

as ‘other misconduct of an adverse party.’”) (citation omitted);

Coppley v. Coppley, 496 S.E.2d 611, 616-18 (N.C. Ct. App. 1998)

(considering allegations of “duress and/or undue influence” as

“other misconduct of an adverse party” under North Carolina Rules

of Civil Procedure Rule 60(b)(3)); Knutson v. Knutson, 639 N.W.2d

495, 498-500 (N.D. 2002) (considering allegations that a

stipulated agreement attendant to a divorce decree was procured

through undue influence under North Dakota Rules of Civil

Procedure Rule 60(b)(iii)).25

Geraldine relies on Hayashi, 4 Haw. App. at 290, 666

P.2d at 174, for the proposition that “undue influence is deemed

to be a matter within Rule 60(b)(6)[.]” However, Hayashi does

not stand for that proposition. In that case, Wife moved for

relief pursuant to HFCR Rule 60(b)(6), alleging, inter alia,

25
We respectfully disagree with the dissent’s conclusion that these
cases are “inapposite” and have no bearing on whether a claim of undue
influence can be considered under Rule 60(b)(6). Dissenting opinion at 51-52.
In each case, the court determined that a claim of undue influence could be
brought under provisions similar to HFCR Rule 60(b)(3). Because a motion
brought pursuant to Rule 60(b)(6) must be based on “some reason other than
those stated in clauses (1) through (5)[,]” a determination that a claim falls
under Rule 60(b)(3) necessarily precludes consideration under Rule 60(b)(6).
Child Support Enforcement Agency, 98 Hawai#i at 504, 51 P.3d at 371; see also
Self, 421 So.2d at 1281 (“In the instant case the relief sought falls clearly
within the purview of either 60(b)(1) or (2) or (3). Hence, rule 60(b)(6)
would not be available to the wife.”).

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undue influence by Husband. Id. at 288, 666 P.2d at 173. The

ICA noted that relief under Rule 60(b)(6) requires that (1) “the

motion is based on some reason other than those specifically

stated in clauses 60(b)(1) through (5);” (2) “there are

exceptional circumstances justifying relief[;]” and (3) “the

motion is made within a reasonable time.” Id. at 290, 666 P.2d

at 174-75. The ICA then went on to deny the relief requested

because Wife’s petition did not sufficiently allege “exceptional

circumstances” and, therefore, her six-year delay in filing the

motion was unreasonable. Id. at 291, 666 P.2d at 175. Thus, the

ICA disposed of the Rule 60(b)(6) motion without addressing the

requirement that “the motion [be] based on some reason other than

those specifically stated in clauses 60(b)(1) through (5)[.]”

Id. Accordingly, Hayashi does not answer whether “undue

influence” properly falls under the provisions of Rule 60(b)(3)

or 60(b)(6), and Geraldine’s assertion that “[t]he ICA ignored

Hayashi” is misplaced.

Finally, although Geraldine argued in the ICA that the

family court erred in failing to conduct an evidentiary hearing,

she did not raise this issue in her application. Moreover, this

argument is without merit. “The trial court may deny relief

under Rule 60(b) without holding a hearing and may decide the

issue on the basis of papers submitted.” Hayashi, 4 Haw. App. at

293, 666 P.2d at 177 (citing Ahlo, 1 Haw. App. 324, 619 P.2d

112). Although an evidentiary hearing may have proved useful in

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developing or substantiating Geraldine’s allegations, Geraldine

did not move for or otherwise request an evidentiary hearing, but

advised the family court that she was pursuing the “labor

intensive evidentiary part” in the circuit court in a related

case. Inasmuch as Geraldine did not, at any point appearing in

the record, request that the family court conduct an evidentiary

hearing, we cannot hold that the family court erred in failing to

do so.

Accordingly, the ICA did not err in holding that the

family court did not abuse its discretion in denying Geraldine

relief in this respect.

IV. Conclusion

For the foregoing reasons, we hold that the 11/28/03

Decree is not void under HFCR Rule 60(b)(4). We further hold

that Geraldine’s claims of “fraud on the court” and “undue

influence” are properly considered under HFCR Rule 60(b)(3), and

are therefore untimely. In light of these holdings, we need not

address Geraldine’s arguments concerning estoppel or the proper

standard of review for the family court’s FOFs.

Accordingly, the May 3, 2010 judgment of the ICA is

affirmed.

Michael Jay Green, Howard /s/ Mark E. Recktenwald
Glickstein, (Michael Jay
Green & Associates) and /s/ Paula A. Nakayama
Kimberly A. Van Horn for
petitioner/plaintiff- /s/ James E. Duffy, Jr.
appellant
/s/ Richard K. Perkins
(cont. on next page)

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Paul Tomar (Ashford &
Wriston), Raymond Okada,
Bruce Lamon and Kimberly
Koide (Goodsill Anderson
Quinn & Stifel) for
respondent/defendant-
appellee

________________________________________________________________

No. 28928, Cvitanovich-Dubie v. Dubie; Opinion of the Court by
Recktenwald, C.J.

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